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66th Congress, ) 

2d Session. ) 



SENATE. 



Document 
No. 227. 






DEMOTION OF OFFICERS OF THE REGULAR ARMY 



LETTER 



THE SECRETARY OF WAR, 

TRANSMITTING . 

IN RESPONSE TO A SENATE RESOLUTION OF FEBRUARY 5, 1920, 
COMMUNICATIONS GIVING INFORMATION AS TO THE POLICY 
OF THE GENERAL STAFF IN THE MATTER OF DEMOTING OFFI- 
CERS OF THE REGULAR ARMY. 



February 19, 1920. 



-Referred to the Committee on Military Affairs, and ordered to 
be printed. 



War Department, 
Washington, February 19, 1020. 
To the President of the United States Senate, 

Washington, D. < '. 

Sir: I have received Senate resolution No. 294, directing the 
Secretary of War to furnish to the Senate certain information called 
for under six heads, as will be explained hereafter. The infor- 
mation called for in the third and fourth paragraphs will require a 
long time to compile. There is no necessity, however, for delay- 
ing my answer on the other points, which is, therefore, submitted at 
the present time. 

In the first place, information is asked as to "the policy of the 
General Staff of the War Department with respect to the demotion 
of officers of the Regular Army." Stated in a single sentence, this 
policy is to demote officers when they become surplus in their tem- 
porary grades. The emergency rank of officers of the Regular Arm}' 
was attained when the Army consisted of nearly 4,000,000 men, 
including about 200,000 officers. Immediately after the conclusion 
of the armistice, demobilization of this great war army was begun. 
As the enlisted strength was reduced, the commissioned strength was 
likewise necessarily reduced, though not at all times in exactly the 



2 DEMOTION OF OFFICERS OF THE REGULAR ARMY. 

same proportion. Whenever officers became surplus, the proper 
course was to discharge them, for it would have been unjustifiable 
to retain in the service officers who were unemployed, or who were 
employed only on duties which ought to be performed by officers of 

lower rank. Therefore a surplus officer is always discharged, which, 
in the case of an emergency officer, involves his return to civil life, 
and in the case of an officer of the Regular Army, his return to the 
grade which he holds in the permanent establishment. 

The resolution further inquires as to "the date of the adoption of 
such policy, and what steps, if any, are provided thereunder so that 
the olf.cers of the Regular Army may he restored to their permanent 
grade in an orderly and equitable manner." This policy was adopted 
shortly after the conclusion of the armistice, Xovemher 11, 1918. 
The manner in which it is administered is set forth in Circular 6'.), 
War Department, February 8, 1919, a copy of which is hereto 
attached. In many ways it would he desirable to conduct the 
demotion of officers lil e their promotion, strictly on considerations 
of relative merit, hut in applying this principle there are serious 
practical difficulties. The chief functions of the Army lor the period 
immediately succeeding the armistice have been to close out the 
business of \ arious sorts pertaining to the war and to male prepara- 
tions for the reorganization and training of the peace Army. In 
order that these functions may be carried out m a satisfactory 
manner, it is necessary that officers should be retained on the same 
duties long enough to familiarize them with their work. Constant 
changes in the j ersonnel of an organi: ation, or of an office, will 
prevent its accomplishing anything of value. We must be careful 
not to go too far in changing assignments lor the mere purpose of 
retaining some offit ers rather than others in their advanced rank. 
!-ome such transfers can be made, however. 

Shortly alter the conclusion of the armistice a number of efficient 
officers were found to be sin-, ins and were discharged from their emer- 
gency commissions. In analyzing the situation at any station, or 
in any organi: ation. it seemed lair that those officers who had been 
found to be incompetent, or who had been guilty of misconduct, 
should be returned to their permanent grades in advance oi those 
whose services had been satisfactory. Every effort has, therefore, 
been made to find these inefficient officers and they have been dis- 
charged from their temporary commissions. The total number of 
such officers was relatively small and at no time sufficient to effect 
the redu< tion necessary as the Army contracted in she. When an 
efficient officer is found to be surplus, or, in other words, when his 
office or organization can no longer employ him on duties suitable to 
his grade, effort is made to transfer him to another assignment, but 
if ixt | ro] er j lace can be found for him he must then be discharged. 
While on November 11, L918, there were about 7,600 Regular officers 
holding advanced grades, this number has now been reduced to 
about 3,000, and the process is continuing according to the same 
general princij les. 

The third and fourth paragraphs of the resolution ask for lists of 
names, which wid include these of almost all officers of the Regular 
Army, with certain information about each officer mentioned. 1 
have' had an estimate made, and find that the preparation of an 
answer to these paragraphs will require about four months in time 

> t*"|920 



DEMOTION OF OFFICERS OF THE REGULAR ARMY. 3 

and an expense of about $20,000. I wish to bring this respectfully 
to the attention of the Senate, believing that the amount of time anil 
money involved was perhaps not realized when the resolution was 
passed. In any event, I should not feel justified in delaying my 
answer to the remainder of the resolution until the work in con- 
nection with these two paragraphs should be completed. 

In paragraph 5 of this resolution information is asked as to "the 
policy of the War Department in regard to section 8 of the selective 
service act approved May 18, 1917." From the subject matter of 
the resolution in general, it is clear that that portion of section 8, 
here referred to, is the following: 

Vacancies in all grades in the Regular Army resulting from the appointment of 
officers thereof to higher grades in the forces other than the Regular Army herein 
provided for shall be rilled by temporary promotions and appointments in the manner 
prescribed for filling temporary vacancies by section I 14 of the national defense act 
approved June 3, 1916; and officers appointed under the provisions of this act to higher 
grades in the forces other than the Regular Army herein provided for shall not vac ate 
their permanent commissions nor be prejudiced in their relative or lineal standing 
in the Regular Army. 

What Congress intended to accomplish by these provisions is 
reasonably clear. In the first place, the use of Regular Army officers 
with the other forces about to be raised was highly desirable, as it 
has been in all past wars. In the second place, the depletion of 
Regular Army units by the detachment of their officers for duty 
with other forces hud to he avoided, if the efficiency of those units 
was not to be impaired. On general principles of law, an officer may 
not at the same time hold two commissions in the Army. Congress 
has, however, made a special exception to this by the enactment of 
the provision just quoted,, which provides that the appointment of a 
Regular Army officer to higher rank in the other forces shall not 
cause him to vacate his permanent commission. By virtue of this 
provision, then, it is possible for such an officer to hold two commis- 
sions at the same time, one being his permanent commission in the 
Regular Army and the other a temporary commission for the period 
of the emergency. If appointment in the other forces had compelled 
an officer of the Regular Army to surrender his permanent commis- 
sion, it would have been well-nigh impossible to procure any appre- 
ciable number of such officers for duty away from the Regular Army. 

In previous wars it has been our custom to maintain the Regular 
Army as a thing more or less apart from the rest of our military 
forces, and to raise other organizations for use during the war, whose 
personnel was interchangeable with that of the Regular Army only 
to a very limited extent. In passing the selective-service act, Con- 
gress evidently contemplated the continuance of the same practice 
in the war on which we were then entering. If, then, the Regular 
Army component were maintained as a distinct entity, the appoint- 
ment of any considerable number of its officers in other forces would 
have an injurious effect upon the efficiency of the units from which 
they were withdrawn. This danger was guarded against by the pro- 
vision that when officers were appointed elsewhere in the manner 
just described, their places with the Regular Army should be rilled 
through temporary promotion in order of seniority, and through 
temporary appointments in the lower grades. So long as the sepa- 
ration of the Regular Army was maintained, we should have a military 



4 DEMOTION OF OFFICERS OF THE REGULAR ARMY. 

force in one part of which promotions would be made by seniority 
and in other parts by selection. 

For the first part of the war, as is well known, this separation was 
maintained, and the Army was composed of several distinct compo- 
nents. Many officers of the Regular Army received so-called National 
Army or National Guard commissions, thereby causing temporary 
promotions among the officers remaining with the Regular Army 
component. As these promotions were made in accordance with the 
well-established rules governing permanent promotions in the Regular 
Army, most questions which might have arisen, had the system been 
entirely new, were already answered. One new point, however, was 
raised almost at once, but was readily settled. If a vacancy occurred 
in a particular grade and branch, and the senior officer of the next 
lower grade in that branch were serving with the Regular Army com- 
ponent and under a Regular Army commission, there could be no 
question as to the person entitled to the vacancy. But if the senior 
were not with the Regular Army component, but was already serving 
under a National Army commission, it was at first doubtful whether 
he should not be promoted and returned to the Regular Army com- 
ponent. To do this would involve continual transfers from one com- 
ponent to another, and would result in some persons being eligible at 
all times for advancement by either selection or seniority, while 
others were eligible only under one of the two systems. It was de- 
cided that a Regular Army officer serving under a National Army 
commission was, for purposes of temporary promotion, an officer 
of the National Army only. I do not go into the reasoning on which 
this decision was based, because it is set forth in full in an opinion 
of the Judge Advocate General, which will be referred to hereafter 
and a copy of which accompanies this report. 

Of course, it was the actual tenure of a National Army commission 
which made an officer ineligible for temporary promotion in his own 
component. If he should resign or be discharged from his National 
Army commission, he, necessarily, reverted to his permanent place 
in the Regular Army, which he had never vacated, and at once 
became again eligible for temporary promotion within his own com- 
ponent. He might or might not receive such promotion, depending 
upon the occurrence of vacancies. But he was as eligible for pro- 
motion to any vacancy which might occur as if he had never held 
the National Army commission which had withdrawn him temporarily 
from the Regular Army. 

This explanation, I think, renders the War Department's policy in 
regard to temporary promotion sufficiently clear. The Army oper- 
ated under the system as I have described it until August 7, 1918, 
"n which date General Orders, No. 73, were published. On that date 
the War Department abandoned the plan of keeping the Army 
divided into distinct components, which, as I have already remarked, 
was no doubt contemplated, though not required, by the selective 
service act. The difficulty of maintaining the separation had grown 
so great that on the date just mentioned all distinctions were abol- 
ished and the various components were all merged into the United 
States Army. Temporary promotions in the Regular Army were by 
the terms of that order discontinued. As that particular component 
of our emergency army ceased to exist as a separate and distinct 
thing, its separate and distinct promotion system disappeared along 



DEMOTION OF OFFICERS OF THE REGULAR ARMY. 5 

with it, From that time on all commissions for the period of the 
emergency were given as in the United States Army, without speci- 
fying a particular component, as had previously been done. This 
action was taken after careful consideration of all legal aspects of 
the matter. A memorandum from the Acting Judge Advocate Gen- 
eral, in which all features of the order are discussed, accompanies 
this report. 

Paragraph 6 of the resolution inquires "if any specific ruling as to 
the effect of section 8 of the selective draft act has been made to the 
War Department by the Judge Advocate General whether said sec- 
tion was intended to preserve a lineal or relative standing of officers 
of the Regular Army." I have already referred to an opinion of the 
Judge Advocate General which discussed the provisions of the law 
relative to temporary promotion. In the course of this opinion the 
expression used in the act- "relative or lineal standing in the Regu- 
lar Army"— is fully discussed. The opinion was approved and was 
published in full on pages 17-20 of Bulletin No. 72, War Department, 
a copy of which is transmitted herewith. It has been consistently 
acted upon since the date of its approval, except in so far as rendered 
obsolete by the merger of the several components of the Army, 
accomplished by the publication of General Orders, No. 73, 1918." ' 
V ery resp ectf ully , 

Newton D. Bakes, 

Secretary of War. 

[Cir. 09.] 

Circular{ War Department, 

No. 69. f Washington, February 8, Hi 19. 

ASSIGNMENT AND DEMOTION OF OFFICERS. 

1. During the period of the emergency, officers who are assigned 
to line duties will be assigned according to their temporary grades 
as prescribed in the tables of organization. In making assignments 
to staff or other duties, not line, below the grade of brigadier general, 
officers will be assigned without regard to the grades authorized by 
the tables of organization. General officers will be assigned to 
duties consistent with their grades, and when they can not be so 
assigned orders will be issued by the War Department demoting 
them to their Regular Army rank. 

2. When officers of the Regular Army become surplus in their 
emergency grades, their names wdl be reported to the War Depart- 
ment. If vacancies exist to which they can be assigned in their 
emergency grades, they will be so assigned. If no such vacancies 
exist, they will be demoted to their Regular Army rank. 

3. Class 1 and 2 emergency officers (Circular No. 75, W. D., 1918) 
who become surplus will be discharged as prescribed in previous 
instructions. Class 3 officers will be available for assignment to 
existing vacancies, or for assignment to central training schools 
without reduction in rank. Class 3 officers who are not recommended 
for appointment in the Regular Army during or after attendance 
at such schools will be discharged when their services are no longer 
needed. 



6 DEMOTION OF OFFICERS OF THE REGULAR ARMY. 

4. It is the policy of the War Department to return to the inactive 
list retired officers, now on active duty, who can be replaced by 
officers on the active list. Chiefs of bureaus and arms of the service 
and commanding officers who have retired officers on duty under 
them will submit on February 15, 1919, list of such officers. They 
will indicate which of these retired officers they consider should be 
retained on active duty for the best interests of the service. Recom- 
mendations for retention of retired officers on active duty must be 
accompanied by reasons. Retired officers holding emergency ad- 
vanced rank will be demoted to their Regular Army rank upon 
being returned to the inactive list. 

."). In addition to the normal demotions under paragraph 2 of 
this circular, officers of the Regular Army who have been found 
unsuited for their advanced rank and who have not already been 
demoted, and officers who may hereafter be found unsuited for 
their advanced rank, will be demoted to their Regular Army rank. 
Commanding officers and chiefs of staff corps ami departments will 
submit without delay, and from time to time in the future, recom- 
mendations for the demotion of such officers. These recommenda- 
tions will be carefully reviewed by the War Department in connec- 
tion with the complete records of the officers concerned. 
[210.31. A. G. O.] 

Bv order of the Secretary of War. 



Official: 

P. C. Harris. 

Thi Adjutant Gi rn ral. 



Peyton C. March. 
Gt n ( ral, fhief of Staf. 



[Bui. 72.] 

Bulletin War Department. 

Xo. 72 Washington, December 24-, 1917. 

The following digest of opinions of the Judge Advocate General of 
the Army, for the month of November, 1917, and of certain decisions 
of the Comptroller of the Treasury and of courts, together with notes 
on military justice prepared under the direction of the Judge Advo- 
cate General of the Army, is published for the information of the 
service in general. 
[016.2, A. G. 0.] 

By order of the Secretary of War: 



Tasker H. Bliss, 

Gt in ral , ( 'litt 1 of Stan . 



Official: 

H. P. McCain, 



11k Adjutant Gi m ral. 



Digest of Opinion-, 
appropriations: civilian labor for police duty. 

It was not contemplated in any appropriation made for either the Medical Depart- 
ment or the Quartermaster's < 'orps to pay for civilian labor to do police duty at a base 
hospital. Such duty should be done by the enlisted personnel. 

Ops. J. A. (i. 230.14, Xov. 12, L917.) 



DEMOTION OF OFFICERS OF THE REGULAR ARMY. i 

APPROPRIATIONS XXIV: EXPENSE OF ENFORCING REGULATION 1 XDER SECTION'S 12 

AND 13 OF THE DRAFT ACT. 

The expense of conducting investigations and procuring evidence againsl boot- 
leggers, drug users, and prostitutes for violations of the regulations under the draft 
act can no1 be paid from the appropriation for '"Contingencies of the Army." Such 
expense should be borne by the Department of Justice. 
Ops. .1. A. G. 250.11. Nov. 26, 1917.) 

APPROPRIATIONS! HEAT AND LIGHT FOR Y. M. C. A. Bl II. DIM, s. 

The appropriation for furnishing beat and light for buildings erected at private cost 
under the act of May 31 . 1902, is not available for the installation of heating and light- 
ing fixtures in Y. M. C. A. buildings, but only To provide the eonsumal le supplies 
necessary for heating anfd lighting same. 

(Ops. J. A. G. 412.1, Nov. 2, 1917.) 

APPROPRIATIONS: HEAT AND LIGHT FOR Y. \V. C. A. HOSTESS HOI SES. 

The appropriation for furnishing heat and light for buildings erected at private cost 
under the act of May 31, 1002. is not available for furnishing heat or light for hostess 
houses of the Y. AY. C. A. 

Ops. J. A. G. 680.32, Nov. 24, 1917. 

ARMY i: COMPOSITION AND ORGANIZATION. 

There is no legal reason why enlisted men of the Regular Army. National Guard, 
National Army, or other divisions of the Army may not be regarded as interchangeable 
or why they should not all be carried on the same muster roll. 

(Ops. J. A. G. 220.33, Nov. 1. L917.) 

ARMY I G. D: MEDICAL DEPARTMENT. DENTAL O. R. C 

While the Dental Corps is included in the Medical Department for administrative 
purposes, it has independent functions, and since the act of October 6, 1917 (Public 
86, 65th Cong.), makes the personnel of that corps the same as that of the Medical 
Corps, except as to number per thousand, the Dental Corps is such a corps as should 
form the basis of an organization in the Officers' Reserve Corps. Subsection 2 of sec- 
tion 1 of Special Regulations 43, War Department, 1017. may properly be amended so 
as to authorize the commissioning of officers in the Dental Reserve * "orps of the Medical 
Department with the same grades and percentages within the grades as are permitted 
by law for the Medical i >rficers' Reserve Corps. 

(Ops. J. A. G. 211.25, Nov. 9, 1917. 

\I1MV: ORGANIZATION SUPPLY SERGEANTS. 

Provisions for supply sergeants for any organization except Engineers, unless the 
term "supply sergeant" is qualified by other language, must be construed to have 
reference to supply sergeants of the class provided for companies, troops, and batteries, 
and not to battalion supply sergeants. 

i()ps. J. A. (,. 322.56, Nov. 15, 1917.) 

ARMY FIELD CLERKS: SERVICE PREREQUISITE TO ALLOWANCES. 

Under the Army appropriation act of August 29, L916, Army field clerks after 12 
years' service, 3 years of which shall have been on detached duty away from permanent 
station or on duty beyond the continental limits of the United States, or both, are 
entitled to certain allowances. In computing the 12 years' service, service as an 
enlisted man can not be counted. Service as headquarters clerk prior to the passage 
of the act and as an Army Held clerk thereafter should be counted. 

(Ops. J. A. G. 241.12. Nov. 12, 1017. 

ARTICLES OF WAR LI X . C, V. JURISDICTION OF CIVIL COURTS. 

The civil authorities do not have the legal right to ho'd in arrest for misdemeanors 

persons in the military service, and it is their duty, upon request, to surrender such 
persons without trial to the military authorities. The Government is entitled to the 



DEMOTION OF OFFICERS OF THE REGULAR ARMY. 



services of its soldiers, and local courts should not be permitted to deprive the < U 
ment of such services. Courts-martial should be availed of exclusively for tin 

. . i- . i.i : ... .... ...l iv 1 :_.i i.„i .. 17.J i i: .. .. l. 



( Jovorn- 
the trial 

of soldiers who offend against local or Federal liquor laws. 
(Ops. .1. A. G. 250.11, Nov. 14, 191' 



VRTK LES OF WAR LXXXII] C\ LIMITATIONS OF SENTENCES BY SUMMARY COl RTS. 

The forfeiture of pay imposed by a summary court tinder the Fourteenth Article of War 
may be extended over a greater period than three months provided that theamountfor- 
feited does not exceed the amount of the soldier's pay for the three months imme- 
diately succeeding the sentence. Asa matter of policy, it is unwise to protract unduly 
the period of forfeiture. 

(Ops. .1. A. G. 250.41, Nov. 17, L917.) 

CIVILIAN' EMPLOYEES XI A: RESIGNATION WITHOUT DUE NOTICE. 

A civilian draftsman in the office of the Thief of Ordnance can not be required to 
continue in service against his will. But where he resigns and leaves without reason- 
able notice the record may show the fact, in order that the Civil Service Commission 
may apply its rule permitting a refusal to examine or certify an applicant who. within 
one year next preceding the date of his application, has resigned without due notice, 
to the embarrassment of the sen ice. 

(Ops. J. A. G. 230.81, Nov. 8, L917.) 

CLAIMS XIi: DISCIPLINE IV, B FEES FOR TAKING DEPOSITIONS. 

Where the law of the place where a deposition is taken does not lix any fees therefor, 
the civil officer before whom a deposition is taken for use before a court-martial is 
entitled to reasonable compensation for his sen ices 

(Ops. J. A. G. 250.464, Nov. 15, L917.) 

CLAIMS l\, XII, PI DAMAGE INCIDENT TO OPERATION OF A.RMY. 

Army appropriation act of May 12, 1917, provides for the payment of claims for 
damages to and loss of private property incident to the training, practice, and opera- 
tions of the Army. (Maims for damages incident to the operation of the Army are 
claims for damages which' have been occasioned by an act done in connection with 
some movement or activity of the Army, and not in connection with mere mainte- 
nance. Hence, damages caused by a < lovernment motor truck not used in conned ion 
with movement of troops, or by a laundry wagon of a post laundry, can not be paid out 
of this appropriation. 

(Ops. .1. A. G. L52.1, Nov. 10, L917; Nov. i:>, 1917.) 

CONTRACTS XV : BY OFFICER OR EMPLOYEE WITH GOVERNMENT. 

Under present statutory provisions (sec. II of Criminal ( 'ode; sec. 3 of act of Aug. 10, 
1!)17) and Army Regulations (par. 521 ), an officer or employee in the military service 
is prohibited from acting as an officer or agent of (he Government in making any 
contract or placing any order with a firm or corporation in which he may have a pecuni- 
ary interest, and from inducing or advising any authorized officer to make a contract 
or place an order with such firm or corporation. Otherwise, there is no objection to 
an officer or employee in the military service entering into contractual relations with 
the Government or owning an interest in a firm or corporation which enters into con- 
t facts with I he ( iovernmeiii . 

(Ops. .!. A. (i. 161.46, Nov. li, 1917; 161.44, Nov. 7. 1917.) 

CONTRACTS III: EMERGENCY PURCHASES. 

All purchases of military supplies are now emergency purchases and are made 
without advertising. Paragraph 051, Army Regulations, requires a report of all 
such purchases exceeding slot) to he made to the Secretary of War, but there is no 
statutory provision, at present applicable, which requires such a report, for, so far 
as section 3709, Revised Statutes, applies, the Secretary of War has approved such 
purchases in advance by his order of April 12, 1917, and the act of June 12, 1906, has 
no operation when all purchases are emergency purchases. 

(Ops. J. A. (i. 400.123, Nov. 26, 1917.) ' 



DEMOTION OF OFFICERS OF THE REGULAR ARMY. 9 

DESERTION III, (': APPREHENSION AND DELIVERY OF DESERTERS. 

Civilian officers authorized by law to arrest offenders have power to apprehend 
and deliver deserters to the military authorities. When they have once arrested a 
deserter they may deliver him to any designated point regardless of State or other 

jurisdictional lines. 

i Ops. J. A. G. 251.21, Nov. Hi. L917.) 

DESERTION VIII: ARTICLES OF WAR CHI LIMITATIONS OF ACTION. 

Paragraph L25, Army Regulations, and paragraph It, Compilation of General 
Orders. L915, are in conflict with the thirty-ninth article of war, and paragraph I IS. 
subdivision d. Manual for Courts-Martial, 1!)I7, regarding the statute of limitations 
affecting desertion, The latter are controlling, the statute begins to run on the 
dale of the commission of the offense and continues to run until the date of arraign- 
ment of the accused. Its running is suspended during the period of any absence of 
the accused from the jurisdiction of the United States and any period during winch 
by reason of some manifest impediment the accused was not amenable to military 
justice. 

(Ops. J. A. (i. 251.25, Nov. 6, L917.) 

DESERTION V, D: REWARD — REIMBURSEMENT FROM DESERTER. 

There is no statute requiring that the amount of the reward and other expenses 
incurred for the apprehension of a deserter he charged against the deserter. The 
requirement of paragraph 127, Army Regulations, may he waived or modified in the 
discretion of the Secretary of War. 

(Ops. J. A. G. 251.211, Nov. 1, 1017.) 

DISCIPLINE III, XIV, H: CONVENING AUTHORITY OF COURTS-MARTIAL -PRESIDENT AS 

CONFIRMING AUTHORITY. 

Where the commanding officer of a tactical division serving within the territorial 
limits of a department is the accuser or prosecutor, the duty of ordering the court- 
martial devolves upon the War Department, since such tactical divisions have been 
withdrawn from the control of department commanders. And where an officer below 
the rank of brigadier general, belonging to such division, is sentenced to dismissal, 
the proceedings must go to the President for confirmation. 

(Ops. .1. A. G. 250.42, Nov. 21, 1917.) 

DISCIPLINE IX: PROCEDURE OP COURTS-MARTIAL — EFFECT OF IRREGULARITIES. 

The thirtieth article of war provides that when the court requires the legal advice 
of the judge advocate, it shall he obtained in open court in the presence of accused. 
Article 37 provides that errors of procedure shall not invalidate a sentence unless the 
proceedings show, in the opinion of the reviewing authority, that the rights of the 
accused have been substantially prejudiced. Failure to have accused present at a 
session where legal advice of the judge advocate was obtained is not material unless 
the substantial rights of the accused have been injured. 

(Ops. .1. A. G. 250.45, Nov. 10. L917.) 

EIGHT-HOUR LAW Vi: EXTRAORDINARY EMERGENCY, 

The employment by the Government of laborers and mechanics in excess of eight 
hours per day, except in cases ,,f extraordinary emergency, is prohibited. Everything 
necessary to he done to assemble, care for, clcthe, shelter, feed, arm, and train the 
soldiers of the National Army is of immediate am! imperative necessity. \iid in the 
employment of labor to carry forward any or all of these purposes, and Ln declaring in 
connection therewith the existence of an extraordinary emergency, a very wide dis- 
cretion must he lodged in those officers charged with the performance of these duties. 
When such extraordinary emergency is declared, report should he made promptly to 
the Secretary of War. (A. R. 731.) ' 

(Ops. .1. A. G. 230.4422, Nov. 16, 1917.) 



10 DEMOTION OF OFFICERS OF THE REGULAR ARMY. 

EM.1ST5IEXT II. c: INVOLUNTARY — DISCHARGE OF DRAFTED MEW 

A districl board has no authoritv to reopen the case of a man who has been inducted 
into the military sen-ice; but the local board mav reopen his case upon permission or 
direction of the adjutant general of the State. If up m re ipening the local board 
cides thai the man should have been exempted, ii will so notify the adjutant general, 
who will in turn notif the commanding officer at the □ ion camp. If a local 

1m aril has, through error, sent a man to a mobilization camp pending hi« appeal, and 
he ha- been inducted into the militarv service, am! thereafter he presents a certificate 
of exemption from the district board, he may be discharged bv the division com- 
mander. Other than above stated, a commanding officer or division commander has 
ity t;> discharge a man on the ground that he should ha\e been exempted by 
the local board. 

fOps. J. A. (.. 324.72, Xov. 22. 191 

ENLISTMENT III INVOLUNTARY— METHOD OF CORRECTING RULINGS OF LOCAL BOARDS 
ERRONEOUSLY HOLDING MEN FOR SERVIl I . 

Tin- decisions of local boards upon claims for exemptions, including those based 
upon alienage, are conclusive. Where a man has been erroneously certified for service 
through error of law or nonrulpable ignorance of the registrant, his case mav be re- 
opened by the local board upon request of the adjutant general of the StaTe. either 
on his own mo1 ion or on motion of the military authorities or of the local board. < 'om- 
piled rulings of Provosl Marshal General, No. 12. M. 
Ops. J. A. (.. 014.311, Nov. :;. 1917. 

ENLISTMENT II : SELECTIVE-DRAFT ACT REGISTRATION OF SLACKERS. 

A person who willfully refuses to present himself for registration or to submit thereto, 
as provided in the selective-draft act, should be immediately registered and thereafter 
prosecute. 1 for his misdemeanor. It would defeat the purpose of the acl were the 
involuntary registrati< n postponed until after service of the sentence imposed for the 
commission of the misdemeanor. 

ps. J. \. G. 324.71, Nov. in. mi:. 

ENLISTMENT II INVOLUNTARY PROCEDURE BEFORE LOCAL BOARDS UNDER SELECTIVE- 
DRAFT ACT. 

Local boards have no power under presenl presidential regulations to compel the 
attendance of witnesses, for the regulations do not contemplate the taking of oral 
testimon\ , bu1 require the presentation of evidence bv affidavit. 

< lp*. J. A. G. id:;. 2f>, v \ . 7. 1917 

ENLISTMENT II. A: INVOLUNTARY— INDUCTION INTO SERVICE. 

A drafted man was on ( >otober f> assigned to a specified company, on < k'tober 13 was 
reported physically fit. on October 25 was rejected as physically unfit, and in the 
evening of Octi ber 25 died // ' •'. That his ii duction hit the military service was 
complete before October 25, and that the rejection on October 25 did not, under the 
circumstances, operate as a discharge, 
ps. J. A. G. 220. 1G, \'o\ 20, 191 

ENLISTMENT I, B, 3: STATUTORY REQUIREMENTS — ELIGIBILITY OF Women. 

The statutes governing enlistment in the Army do not authorize the enlistment o. 
women. Consequently women mav not be enlisted in the Ordnance Department. 
(Ops. .1. A. G. 342, Nov. 14, l"i" 

ENLISTMENT I, B, 3: STATUTORY REQUIREMENTS ELIGIBILITY FOR MEDICAL ENLISTED 

RES! RVE CORPS. 

Only citizens of the United States or persons who have declared their intentions 
ecome citizens of the United States are eligible for enlistment in the Medical 
Enlisted Reserve < orps. Japanese and Chinese subject? and citizens of the Philippine 
Islands an therefore, ineli^il 

i i 24. 1917.) 



DEMOTION OF OFFICERS OF THE REGULAR ARMY. 11 

FIELD SERVICE: ARMY NURSE CORPS —COMMUTATION OF QUARTERS AND SUBSISTENCE. 

Field service is a term of which the military mind has a fairh accurate conception, 
although it is not easily defined. Going to the prof essional booksand the field-service 
regulations and the drill regulation?, the term will be found to ha ve reference nol only 
to actual service in campaign or in action, but as well to an instructional service, 
which, though instructional, consists of the practice of those exercises and duties 
which arc incident to campaign or action, of the application of tactical principles to 
assumed situations with respect to an imaginary, outlined, or represented enem or 
a particular objective, As applied to The Nurse Corps, it means nothing more than the 
discharge of duties usually and ordinarily connected with and discharged by a nurse. 
in a base hospital, which, as its name implies, is a hospital organized for actual and 
practical service with an army in the field. Accordingl :. nurses in sen ice at the base 
hospital of a cantonment or cam]) of the National Army are in field service and are 
not entitled to commutation of quarters, of heal or light, or of susbistence. 

i()ps. J. A. G. 24684, Nov. 7. L917, citing <>p~. .1. A. (i. 6-124.4, .Inly 6, 1914, and 
24 Comp. Dec. 106.) 

GOVERNMENT AGENCIES. II, C : LIMITATIONS ON BUSINESS OF POST EXCHANGES. 

Post exchanges can not act as agents for private laundries, for a soldier's pay can 
not be stopped to satisfy a claim of a private person or business concern. There i- 
no legal objection to the" post exchange hiring the laundry done by a private laundry, 
thus becoming the real customer of the laundry, and in Turn charging the men just 
and reasonable rates for having their washing done. 
■ (Ops. J. A. G. 486.3, Nov. 8, 1917.) 

INCOME TAX! COMMUTATION OF QUARTERS, HEAT. AND LIGHT. 

Money received as commutation for quarters, heat, and light is income within the 
meaning of the income-tax law. 

(Ops. .1. A. <i. 012. •22. Nov. 19, 1917.) 

intoxicants: selective-draft act — regulations unhei sections 12 and 13. 

The regulations of The President under section 12 of the selective-draft act pro- 
hibiting intoxicating liquors within prescribed distances of military camps do not 
apply to permanent Regular Army posts. The regulations of the Secretary of War 
under section 13, prohibiting The keeping or setting up houses of ill fame, brothels, 
or bawdyhouses within prescribed distances of military camps do apply to Regular 
Army posts. 

(Ops. .1. A. C. 250.11. Nov. 6, 1917. > 

LINE OF DUTY II \. 1 K. 

The presumption is that injuries received while a soldier i.^ in the military service 
of the United States occur in the line of duty unless they were received while he 
was absent on furlough or was in a condition inconsistent with the performance of 
ordinary military duty: or unless they were received in consequence of willful neglect 
or immoral conduct of the injured. Therefore, where the evidence showed only that 
a soldier of good habits, on post guarding a railway bridge, was found about midnight 
lying unconscious aboul 30 feet out on the bridge, severely injured, and that he died 
therefrom, a finding that he met his death as the result of his own misconduct can not 
be sustained. So, "a man absent on a five-hour pas-, who in returning attempted to 
cross the track of a railway company by climbing between two cars blocking the 
crossing, and who was injured by the sudden -tarring of the train, was properly found 
to have been injured in the line of duty. So. a man absent from post on a 10-hour 
pass, who was run down by a railway train while walking along a railway trestle where 
soldiers frequently walked, was injured in line of duty where the evidence showed 
he was Bober and that no proper warning of the approach of the train was given by 
lights or by bell or whistle. 

(Ops. J.' A. G. 220.46, Nov. 7, 9, 1917.) 

marine corps: detailed in signal corps. 

A member of the Marine Corps detached for service with the Army is not, tinder 
the national-defense act, eligible for detail in or attachment to the aviation section 
of the Signal Corps, and therefore can not receive the rating of junior military aviator. 

(Ops. J. A. G. 45.3. Nov. 20. 1917.1 



12 DEMOTION OF OFFICERS OF THE REGULAR ARMY. 

MILITARY INSTRUCTION II, B: SECTION 50, NATIONAL-DEFENSE ACT. 

Sections 43 and 50 of the national-defense act contemplated standard courses of 
theoretical and practical military training for units of the Reserve Officers' Training 
Corps at educational institutions of at least three hours per week per academic year, 
section 50 fixing the completion of two years' academic service by a. member of the 
senior division of the Reserve < >fficers' Training < 'orps as a condition precedent to the 
right to be furnished commutation of subsistence during further instruction. Senate 
joint resolution 169, Public, No. 35, Sixty-fourth Congress, first session, required that in 
the interpretation of said section ■">(>, men who had received a course of military train- 
ing substantially equivalent to that prescribed by the regulations be qiven credit 
therefor. The proper interpretation of said section 50 as affected by said Public, No 35 
is that the requirement of two years' academic service can not he satisfied by double 
work for one academic year. (Ops J. A. G., 350.3, Nov. 1"., 1017.) But it is not 
required that flic military training should all be acquired at the same institution. 
Consequently, a student may lie entitled to advanced standing in military science 
where he lias received military instruction substantially equivalent to that prescribed 
by the above-mentioned sections of the national-defense act. 
'(Ops. J. A. O. 354.17, Nov. 24, 1917.) 

MILITIA! DRAFT of NATIONAL GUARD OFFICERS. 

An officer in the National Guard of Wisconsin, called into the Federal service July 
15. 1017. was ordered to report for duty and await orders, and did report for duty on 
July 21. 1917. l>y error ol the military authorities he was not mustered into the 
service or assigned to the performance of any duties. Held, that he should be con- 
sidered to have been accepted into the serv ice of the I nited States as a member of the 
Organized Militia on July 21. L917, and to have been drafted into the service of the 
United States on August 5, 1917. 

(Ops. J. A. G. 241.1, Nov. 24, 1917.) 

NATIONAL ANTHEM! MISUSE or. 

There is no Federal legislation regulating the playing of the national anthem, but 
some States have statutes forbidding playing it as part of a medley. 
(Ops. J. A. G. 007. 1 I. Nov. 12. 1917.) 

OFFICE IV. A 2: ACCEPTANCE OF OTHER OFFICE. 

There is no Federal statute forbidding an officer in the National Army from holding 
civil office. The prohibition of section 1222, Revised Statutes, applies only to officers 
of the Regular Army on the active list. As to others than officers of the Regular Army 
the matter is one for State regulation. 

(Ops. J. A. (i. 324.24, Nov. 21, l!)L7.) 

OFFICE III, A: DE FACTO OFFICER — RIGHTS OF. 

The commission of a first lieutenant. Medical Reserve Corps, expired June 3, 1917, 
but the officer continued in service without a new commission and received pay and 
mileage as an officer until August 31, I!) 1 7. On September 9 he accepted a commission 
as captain. Medical Officers' Reserve Corps. Held, thai from June 3 to September 9 
he was a de facto officer, and was entitled to keep the pay already received, but was 
entitled to receive no more pay except for the period beginning September 9, when 
he be< ame a <U inn officer. 

(Ops. J. A. G. 324.23, Nov. 11, 11)17. i 

OFFICE IV. E 2: DISMISSAL OF TEMPORARY AND PROVISIONAL OFFICERS. 

The President has complete power to discharge any temporary officer of the Regular 
Army holding appointment under section 1 of the act of May IS, 1017. Commanding 
generals may appoint military hoards to pass upon the capacity and fitness of such 
officer, whose findings may be laid before the President for such action as he sees tit. 
(Sees. 1 and !) of May is, L917; subpar. 2 of par. 7, G. O. 76, C. S.) But the President 
may discharge provisional officers appointed under section 23 of the national-defense 
act of June 3, L916. onlyafterdue investigation, such as is provided for in paragraph 7, 
G. O. 76, C S. 

(Ops. J. A. (i. 324.242, Nov. 17, L917.) 



DEMOTION OF OFFICERS OF THE REGULAR ARMY. 13 

office i, in A, 8a(4): persons required to take oath of office. 

Whore positions are specifically provided for and specifically appropriated for by 
act of Congress, the holders of such position must take the oath of office prescribed by 
section 1757, Revised Statutes. No modified oath can be substituted therefor. But 
where positions are not so provided for, and the holders thereof are merely designated 
or appointed by the head of a department to perform the services and arc paid out of a 
general appropriation for the expenses of such department, the taking of such oath can 
not be required. 

(Ops.-J. A. G. 230.211, Nov. 19, 1917.) 

office hi, b: promotions in medical corps. 

Section 10 of the national defense act provides that persons hereafter commissioned 
in the Medical Corps shall be promoted to the grade of captain after five years' service 
in the Medical Corps and upon passing the examinations prescribed by the President 
for promotion. Public 86, Sixty-fifth Congress, provides that during the present 
emergency first lieutenants in the* Medical Corps of the Regular Army of the National 
Guard shall be eligible to promotion as captain upon such examination as may be 
prescribed by the Secretary of War. Construing these provisions together with 
section 114 of national defense act, it is held that all vacancies in the Medical Corps 
must be filled by permanent or temporary promotions, according to the character of 
the vacancy, of officers in the Medical Corps below the grade in which the vacancy 
exists, in order of seniority, subject to the required examinations. Temporary 
appointments can be resorted to' only when possibilities of promotions by seniority 
have been exhausted. 

(Ops. J. A. G. 210.2 Nov. 6, 1917.) 

office hi: right of commanding officer — effect of detail. 

Assignments to commands and to statutory offices are governed strictly by law and 
regulations, but officers assigned to a command are subject to the will of the command- 
ing officer and may properly be required to perform any duties he may direct them 
to perform (A. R. 746). And a division commander may detail one staff officer to 
perform the duties of another. Accordingly he may detail the inspector general of 
the division to duty as Acting Chief of Staff and detail a field officer, on duty with a 
regiment of the division, as acting inspector of the division. Such field officer is not 
thereby made an officer of the Inspector General's Department and can not perform 
any duties which are specifically required by statute to be performed by an officer of 
the Inspector General's Department. 

(Ops. J. A. G. 322.081, Nov. 8, L917.) 

officers' reserve corps: eligibility of members for boards of examination 

for rating of aviator. 

Members of the Signal Officers' Reserve Corps promoted, appointed, detailed, or 
attached to the Aviation Section of the Signal Corps are, if they have the required 
experience '"officers of experience of the Aviation Section of the Signal Corps" 
qualified to be members of boards authorized to examine and certify to the qualifica- 
tions of persons seeking the rating of aviators under section 6cf the act of June 24, 1917. 

(Ops. J. A. G. 334.1, Nov. 21, 1917. i 

PAY AND ALLOWANCES I, C 8; III, B 4: ALLOTMENTS AND SATISFACTION OF PRIVATE 
CLAIMS AGAINST ENLISTED MEN. 

A soldier can not legally be deprived of any part of his pay for the satisfaction of a 
private claim, even for the support of his dependent parents. Hut he can make a 
voluntary allotment, for such purpose. If he allots a portion of his pay for the suppoi t 
of his dependent parents, (he Government will, under certain circumstances, make 
an additional allowance to the parents pursuant to the war-risk insurance act of < >cto- 
ber 6, 1917. 

(Ops. J. A. G. 243, Nov. 5, 1917.) 

PAY AND ALLOWANCES II, A lA: COMMUTATION FOR HEAT AND LIGHT. 

An officer on duty in the field with his regiment is not cut it led to have heat and liiffit 
furnished for public quarters occupied elsewhere by his family. 
(Ops. J. A. G. 245.2, Nov. 8, 1917.) 



14 DEMOTION OF OFFICERS OF THE REGULAR ARMY. 

PAY AND ALLOWANCES I, A: DE FACTO OFFICERS. 

An officer of the Medical Reserve Corps who refused to accept a commission in the 
Medical Officers' Reserve Corps is not entitled to receive any pry for services as an 
officer after June 3, L917, for since that dale such officer has been at best but a defacto 
officer. Pay which a defacto officer has received he may keep, but he has no legal 
claim for any pay not vet received. 

(Ops. .1. A. G. 324.23, Nov. 15, 11)17.) 

PAY AND ALLOWANCES I, V. GLNNER's PAY. 

Under section 1343, Army Regulations, L917, a Coast Artillery man rated as a gunner 
and entitled to pay as such li ses such rating and right to such pay on being transferred 
to the Field Artillery. 

(Ops. J. A. G. 242.142, Nov. 21, li) IT. > 

PAY AND ALLOWANCES I. B 6: LONGEVITY PAY. 

The act of June is. 1878 (20 Slut.. 150), providing for credit of lull time of service 
for longevity pay has reference to service as an officer or enlisted man in the full 
military sense. Service in a training camp under an enlistment having for its sole 
purpose training lor entrance into the Army of the United States as an officer and not 
binding t lie enlisted man to any service unless accepted as an officer can not be counted 
thereunder. 

i()ps. .1. A. G. 241.12, Nov. 12, 1917.) 

PAY AND ALLOWANCES I. C: MARKSMAN'S PAY. MACHINE-GUN BATTALION. 

Under Army Regulation 1345 and paragraph 89, Small Arms Firing Manual as 
amended, an enlisted man, qualified as a marksman in the machine-gun company 
of an Infantry regiment, who has been transferred to a company in a machine-gun 
battalion, is entitled to the pay of a marksman, for he is still a member of an organiza- 
tion armed with t lie rifle. 

(Ops. .1. \. G. 212.1 12. Nov. 2, l!>!7.) 

PAY AND ALLOWANCES t. C ■"> : RETIREMENT II. A—ENLISTMENT I. D. 

The Army appropriation act of May 12, I!)I7 (Bulletin 30, p. 45, Pub. No. 11. 65th 
< 'ong., p. 39), provides for the restoration of status in the Regular Army of an enlisted 
man who shall be discharged to accept a commission in the Officers' Reserve Corps, 
in the National Guard, or militia organization, or in any volunteer force, and who shall 
enlist within three months after the termination of his connection as an officer with 
that corps, etc. Held that an enlisted man who is discharged from the Regular Army 
to accept a temporary commission in the Regular Army would not be entitled upon 
reenlistment to occupy his previous status in the Regular Army. 

Ops. .1. A. (I. 342.06, Nov. 17, I!) 17.) 

PAY AND ALLOWANCES I, c: SHARPSHOOTER'S PAY — AERO SQUADRON. 

The Tables of Organization for 1017 show an aero squadron to be an organization 
armed with a rifle, but these tables have no retroactive effect. A qualification as a 
sharpshooter continues for one year if no opportunity for requalification is presented 
within that year ( \. lb, 1345). Therefore an infantryman who qualified as a sharp- 
shooter on July 13, I'M"), and was on March 1, L916, transferred to an aerial squadron, 
was not alter March I, 1916, entitled to pay as a sharpshooter, for from March I. 1916, 
to July 13, 1916, an aero squadron was not an organization armed with a rifle. 

(Ops. .1. A. G. 242.1 12. Nov. L5, 1917.) 

PAY AM) ALLOWANCES II. A 2a: TRANSPORTATION OF OFFICER'S HORSE. 

Private mounts of an officer may, upon change of station, be transported at public- 
expense only when they are to be used bv him at his new station in the public service 
(Ops. .1. A'. G. 94 01 I. Xo\ . 5. 1917.) 



DEMOTION OF OFFICERS OF THE REGULAR ARMY. 15 

PAY AND ALLOWANCES II, A3: TRAVEL ALLOWANCE TO DRAFTED MEN. 

A drafted man discharged by competent authority is entitled to travel allowance 
to the place of acceptance for service. But men sent to camps under the draft act are 
not entitled to travel allowance to the place of reporting to the local board for military 
service. 

(Ops. .1. A. G. 513.3, Nov. 22, 1917.) 

PAY AND ALLOWANCES II, A 2: TRAVEL PAY OF RESERVE OFFICERS. 

A reserve officer making an inspection of the records and accounts of the National 
Guard is entitled to mileage, but is not entitled to be reimbursed for actual expe ises. 
Section 67 of the national defense act appropriates funds for the actual and necessary 
expenses incurred by officers and enlisted men of the Regular Army when traveling 
on duty in connection with the National Guard, but such funds are not available to 
pay expenses of reserve officers. 

(Ops. .T. A. G. 245.6, Nov. 10, 1017.) 

RANK II, Hi: LINEAL RANK, HOW DETERMINED. 

On May 15. I'.MT. several majors in different departments in the Quartermaster 
Corps were promoted to be lieutenant colonels. The promotions were made according 
to seniority in the several departments to which the officers, respectively, belonged 
before the consolidation under the act of August 24, L912 (.'57 Stat.. 591 i,"as required 
by section 3 of said act. The vacancies t<> which they were promoted were original 
vacancies. Held, that their lineal rank is not determined by section 1219, Revised 
Statutes, for the reason that their advancement was by promotion and not by appoint- 
ment, and that section applies to appointments and not to promotions. 

(Ops. .J. A. (i. 210.725.15, Nov. 1!). L917.) 

RANK D: RANK OF NONCOMMISSIONED OFFICERS. 

A noncommissioned officer of the Regular Army is senior to a noncommissioned 
officer of the same grade in other forces irrespective of date of warrant. The reason is 
that members of the permanent Military Establishment are assumed to be more 
experienced than those in the oilier forces which are more or less temporary. 

M)ps. .1. A. G. 220.721, Nov. 20, 1917.) 

RETIREMENT II, A 4: COMPUTING WAR SERVICE FOR. 

The act of March 2, 1907. provides that in computing the .">() years' service for retire- 
ment of enlisted men. all service in the Army, Navy, and Marine Corps shall be 
credited. The act of March :i, L899, governing service for retirement in the Navy, 
provides that active war service during the Civil or Spanish-American Wars shall 
be counted as double time. Held, that in computing the 30 years' service for retire- 
ment of an enlisted man in the Army, time actually served by him in the Navy should 
he computed by Xavy standards and war service therein should be counted as double 
time. 

(Ops. J. A. G. 220.85, Nov. S. 1917.) 

SELECTIVE-DRAFT ACT: ORGANIZATION OF REGIMENTS. 

Under the third paragraph of section I of the selective-draft act, the President lias 
authority to provide that Cavalry regiments organized provisionally as Field Artillery 
may retain their existing noncommissioned personnel until absorbed, but no special 
authority can be given to a single organization to do so. 

(Ops. J. A. G. 322.05, Nov. 17, 1917.) 

W T AR: CENSORSHIP OF MAII IN CANAL ZONE. 

Under section 13 of the ad of August 24, 1912, to provide for the government of 
the <'anal Zone (37 Stat., 560, 569) the Governor of the Panama Canal in time of war 
ha-< power, under authority given by the President, to censor all mail. The e?pionage 
act of June 15. I!tl7, did not repeal said section 13 of said chapter 390. 

(Ops. J. A. G. 383.4, Nov. 5, L917.) 



16 DEMOTION OF OFFICERS OF THE REGULAR ARMY. 

PROMOTIONS TO FILL TEMPORARY VACANCIES IN THE REGULAR ARMY. 

[First indorsement.] 

War Department, J. A. G. <».. September 4, L917. — To The Adjutant General. 

1. By informal indorsement you have referred to this office a reque t for an opinion 
as tn the proper construction t<> lie given thai part of section 8 of the act of May is. 
1917, considered in connection with section 114 of the national-defen°e act, governing 
the subject of promotions to till temporary vacancie- in the Regular Army which 
occur by reason of the appointment of Regular officers to higher grades in the National 
Army. Section S of the act of May 18, 1917, reads in part as follows: 

"Vacancies in all grades in the Regular Army resulting from the appointment of 
officers thereof to higher grades in the force- other than the Regular Army herein 
provided for shall he tilled by temporary promotions and appointments in the manner 
prescribed for filling temporary vacancies by section one hundred and fourteen of the 
national-defence ael approved June third, nineteen hundred and sixteen; and officer 
appointed tinder the provisions of this act to higher grades in the forces other than 
the Regular Army herein provided for shall no1 vacate their permanent commission 
nor he prejudiced in their relative or lineal standing in the Regular Army." 

Section 1 14 of the national-defense acl provide- a- follows: 

"In time of war the temporary vacancies created in any grade not above that of 
colonel among the commissioned personnel of any arm, staff corps, or department of 
the Regular Army, through appointments of officers thereof to higher rank in organiza- 
tions composed of members taken from the National Guard, shall he filled by tem- 
porary promotions according to seniority in rank from officers holding commissions 
in the next lower grade in said arm, staff corps, or department, and all vacancies 
created in any grade hy such temporary promotion- -hall be in like manner filled 
from, and thus create temporary vacancies in, the next lower grade, and the vacancies 
that shall remain thereafter in said arm, staff corps, or department and that can not 
he tilled by temporary promotions, as prescribed in this section, may be filled by the 
temporary appointment of officers of such number and grade or grades as shall main- 
tain said arm. corps, or department at the full commissioned strength authorized 
by law." 

2. In construing the foregoing provisions of the statute it is necessary to determine 
the force and effect to be given to that clause wherein it is stated thai officers of the 
Regular Army, appointed to higher grades in forces other than the Regular Army, 
''shall not vacate their permanent commissions or be prejudiced in their relative or 
lineal standing in the Regular Army"; and also to that clause wherein it is stated 
that temporary vacancies created in any grade not above that of colonel among the 
commissioned personnel of any arm. staff corps, or department of the Regular Army 
through appointment of officers thereof to higher rank in forces other than the Reg- 
ular Army 

"shall be filled by temporary promotions according to seniority in rank from officers 
holding commissions in the next lower grade in said arm. staff corps, or department." 

:;. It, is impossible to read this statute without grasping as its true significance the 
fact that it was intended to enable the War Department to raise ami properly officer 
large armies such as those in process of formation at the present time. To accomplish 
this purpose authority is extended to commission officers of the Regular Army tem- 
porarily in such other forces as may he raised, and its purpose to protect officers so 
commissioned in their permanent commissions and to prevent them from being 
prejudiced in their relative or lineal standing in the Regular Army is unmistakable. 
Beyond this it was not required, however, that the department waste its time and 
effort iii dealing with questions of rank and precedence such as would he involved 
if an effort were made to prevent minor variations in relative or lineal standing as 
between officers who choose to remain in the Regular Army and to serve under their 
commissions therein and those who choose to accept higher commissions in forces other 
than the Regular Army. If such a course of procedure were to he adopted by the War 
Department, it is perfectly evident that so many changes and disturbances among the 
commissioned personnel of the several forces would he required to preserve the relative 
and lineal standing of officers (4' the Regular Army that confusion would inevitably 
follow, efficiency would hi' impaired, and the usefulness of armies subordinated to 
the adjustment of rank and precedence. 

1. From what has j ust been stated i1 appears to be desirable to adopt a construction, 
if smh can he consistently done within the fair meaning and intendment of the 
statute, which will promote the highest efficiency of the service. Assuming, as we 
must, that this was the purpose of the ad, it is difficult to believe that Congress could 
have intended, by the language used, not only to protect Regular officers in their 



DEMOTION OF OFFICERS OF THE REGULAR ARMY. 17 

permanent commissions but to protect them as well from being prejudiced, even 
temporarily, in their relative or lineal standing by preventing such of them as accept 
commissions in forces other than the Regular Army from Vicing temporarily ranked 
by officers of lower permanent rank in the Regular Army, but who are advanced 
therein by temporary promotions. On the other hand, it accords with this assumed 
purpose of the law to hold that Congress intended merely to protect officers of the 
Regular Army in their permanent commissions therein and. as an incident of such 
protection, to prevent them from being prejudiced in their relative or lineal standing 
as members of the permanent establishment only. If it be ((intended that this view 
might result in temporarily giving a junior who had been advanced by temporary 
promotion in the Regular Army higher rank than his senior who has accepted a com- 
mission in forces other than the Regular Army, the answer is that this is a risk the 
senior assumed when he accepted a higher commission in such other forces, a risk 
which the statute did not protect against and which the War Department, as pointed 
out above, could not well assume to avoid without endangering the ultimate success 
of the great effort upon which it is now embarked. 

5. When an officer of the Regular Army leaves his place in the permanent establish- 
ment to accept temporarily a higher rank in another army, it must, 1 think, lie assumed 
that his commission in the Regular Army is temporarily in al ieyance. While serving 
under a different commission in some other army, he dues not and can not function 
under his commission in the Regular Army. He is not, therefore, within the mean- 
ing of the statute an officer "holding a commission in the next lower grade'" o'f his 
arm. staff corps, or department, for, as just shown, he lias (cased to function therein 
and is temporarily as much absent therefrom as though he really formed no part of 
such arm, staff corps, or department. The statute can properly be given full tone 
and effect by construing the language just quoted to mean that promotions to tem- 
porary vacancies caused through the appointment of ofii< ers of the Regular Army to 
higher rank in forces other than the Regular Army shall be filled by temporary pro- 
motions according to seniority of the officers who remain in the Regular Army and are, 
at the time of such vacan< ies, serving under their commission therein. Offi< ers not 
serving under their commissions in the Regular Army would thus be temporarily 
passed over, and instead of being promoted temporarily to higher va< ancies in their 
own arm, staff corps, or 'department they Would be left to serve under the higher 
commissions Which they are temporarily holding in some other army. Such is the 
clear intendment of the statute and such, I think, must have been the purpose of 
Congress in enacting it. 

6. It is impossible to foresee and discuss every contingency that may arise in the 
administration of this law under the construction which I have just indi< ated will be 
the proper one to adopt: but it is believed that the difficulties under this plan will 
be few in comparison with those that would inevitably arise under the alternative 
construction suggested and that none of those that do arise will prove to 1 ie insuperal ile. 
It may lie proper, however, in addition to what lias been stated, to refer to the matter 

of permanent promotions in the Regular Army. When an offi< er 1 imes entitled to 

a permanent promotion in the Regular Army he must, of course, accept the same. 
If he is serving as a colonel, let us say, in the National Army and be< omes a permanent 
colonel in the Regular Army, he should ordinarily be continued in service in the 
NationalArmy. This could involve no impairment of his rank, since his commission 
as a colonel in the National Army would antedate his commission as a permanent 
colonel in the Regular Army. If, however, an officer is serving as a temporary < olonel 
in the Regular Army and is promoted to be a permanent colonel therein, it may well 
be that his commission as a permanent colonel will be subsequent to that held br- 
other temporary colonels who are his juniors in his arm. staff (dips, or department. 
It is my view that the statute intended to protect officers of the Regular Army against 
a contingency of this kind when it provided that they should not he "prejudiced in 
their relative or lineal standing in the Regular Army." I think it would be a fair 
construction of this language to hold that Congress intended that no offi( er of the 
Regular Army, serving under a commission therein, shall he required to serve with 
lower rank than that held by a junior in his arm, staff < orps, or department and who 
is also serving under a commission therein. This sit nation (an be obviated by gi\ ing 
the officer who receives the permanent promotion a constructive date of rank as of the 
date of the temporary commission which he vacates to accept his permanent commis- 
sion. This may be found necessary to maintain him in his proper relative or lineal 
standing in the Regular Army. Cases of this kind mil, it is believed, he lew in num- 
ber and can he taken care of by administrative action without difficulty. This con- 
struction of the statute and the suggested administrative action thereunder would 
amply protect officers of the Regular Army in so far as Congress intended to extend 

S. Doc. 227, (56-2 — -2 



18 DEMOTION OF OFFICERS OF THE REGULAR ARMY. 

prote lion, and would leave the question of relative rank as between officers serving 
under commissions in some other army, where Congress, I think, intended to leave 
it to the fortunes of war and the incidents of service. 

7. It is, therefore, the opinion of this office that promotions to vacancies in the 
Regular Army caused by the. appointment of officers thereof to higher grades in forces 
other than the Regular Army should be idled by promotion, according to seniority, 
of officers who at the date of such vacancies are serving under commissions in the 
next lower grade of the arm. staff corps, or department in which the vacancies occur. 

i Signed I S. T. Axsell, 

Acting Judge Advocate General. 



[J. A. G. O. No. 64-311.] 

EFFECT OF ACCEPTANCE OF COMMISSION'S IN ONE OF THE COMPONENT FORCES OF THE 
ARMY OF THE UNITED STATES UPON A COMMISSION HELD IN ANOTHER FORCE OF SAID 
A R M Y . 

[Memorandum for The Vdjutanl General.] 

August 30, 1917. 

Subject: Effect of acceptance of commissions in one of the component forces of the 
Army of the United States upon a commission held in another force of said Army. 

1. In your letter of August 22, 1917, you ask my opinion ''as to whether or not the 
acceptance of a commission in one of the armies of the United States operates to 
vacate a commission held in one of the other armies where such commission is not 
protected by st atute, such a* one held in the Regular Army." 

In the first place, it is pertinent to invite your attention to the fact that there is 
but one Army of the United States in the general sense — "The Army of the United 
Suites." which consists of the Regular Army, the Volunteer Army, the Officers' 
Reserve Corps, the Enlisted Reserve Corps, the National < ruard drafted into the serv- 
ice of the United States, and the additional forces provided f or in the National Army 
act (the National Army art of May 18, 1917, and sec. 1, national defense act). Who- 
ever holds a commission in any of these component forces is an officer in the Army of 
the United States. 

2. The statutes expressly provide that officers of the Regular Array (which includes 
both active and retired officers) may accept commissions in the National Cuard with- 
out vacating their commissions in the Regular Army (sec 100, national defense act), 
and all the volunteer arts have carried, and do still carrv, the same provision. See 
the volunteer art of L898 (30 Stat., 360, 363); the volunteer art of March 2, 1S99 (30 
Stat,, 977, 980); section 1, act of May 28, L898 (30 Stat., 421); and the existing vol- 
unteer act of A ] nil 25, 1914 1 38 St at . , 346, 350). The present National Army act , which 
provides an additional force— the so-called National Army — supplanting the time- 
honored Volunteer Army, also provides that — 

"Officers appointed under the provisions of this act to higher grades in the forces, 
other than the Regular Army, herein provided for shall not vacate their permanent 
commission nor be prejudiced in their relative or lineal standing in the Regular Army." 

Thus it is that Congress has gone to great pains to authorize the appointment of 
Regular officers to the National < iuard drafted into the Army of the United States, to 
the National Army, and to the Volunteer Army whenever such there shall be. and to 
protect under such circumstances their Regular commissions. In my opinion, the 
protection furnished ends with the statute, and if an officer of the National (iuard 
component, or the .National Army, or of the Reserve Corps, accept a commission in 
any other component force, he thereby vacates his former commissien. 

3. In my judgment, one may not hold two offices in the same military establish- 
ment without specific legislative authority therefor. This may be regarded as infer- 
entially established by the fact that Congress has deemed it necessary to protect the 
commission of an officer in the Regular service when appointed t i any other force in 
the Army of the United States. The incompatibility existing between two offices 
in the same military establishment is obvious. It is settled that two offices are incom- 
patible when a performance of the duties of the other or when the holding of two is 
contrary to the policv of the law. Crosthwaite i>. 1". S. (30 Ct. ('Is.. 300; 22 Op. Attv. 
Gen., 237; 20 Op. Atty. Gen., 427); Webster v. U s. (28 Ct. ('Is., 25); Graham v. 
IT. S. (29 Ct. Cls., 404). < ►bviously an officer of the National Army, for instance, may 
not perform the duties of an officer of the National < !uard, or of a reserve officer, and 
his own as well; and the same is true of the officers of the several forces. For exam- 
ple, a reserve officer has his functions established by law. As such he may be used 



DEMOTION OF OFFICERS OF THE REGULAR ARMY. 19 

for certain specified purposes. Obviously he can not perform the functions which 
inhere in his office as a reserve officer and at the same time those which inhere in 
office in any of the other forces. Nor, with regard to his inactive status, can it be 
said that he stands available so to be used in both capacities. Any other view would 
result not only in grave inconsistencies, but positive injury to the military service. 
Holding dual or multiple commissions in the same establishment can but frustrate 
the patent policy of the law. 

4. General principles point the way to this conclusion, and while the precedents 
are few, they lead in the same direction. It has been held by the Attorney General 
that the office of colonel is inconsistent with that of major in the Army "(20 Ops., 
428). ,And so it has been held of an engineer and a paymaster in the Navy (Webster 
v. U. S., supra) and of an assistant medical referee in the Pension Bureau and an 
examining surgeon (Graham v. U. S., supra). In Webster v. United States, supra, 
the court seemed to rest its reason for its holding of incompatibility upon the state- 
ment that they were "two offices in the same service." 

It is certain also that one holding both commissions would not receive the pay of 
both offices, and this in itself is an evidence of incompatibilitv (20 Ops Attv Gen 
428). 

_ 5. It is my opinion, therefore, except in so far as the statute gives express protec- 
tion, an officer in one of the component forces of the Army of the United States may 
not hold a commission in another such component, and that if he be appointed to 
any such second office he thereby vacates his former commission. 

(Signed i S. T. An'seli,, 

Acting Judge Advocate General. 



Decisions of Comptroller. 
pay and allowances i. b 6: computing service i'm; longevity pay 



Commissioned officers of l he Regular Army who have had State (not Federal) 
service in the militia or National Guard are net entitled to count such service in the 
computation of their longevity pay. Officers of the National Guard drafted into the 
military service of (lie United States under section 111 of the national defense act of 
June 3, 1916, are entitled to have counted all legal service which i hey have had in the 
Organized Militia or National Guard and in the Army and Navy, if any, in computing 
their longevity pay. 

(Opinion of' Nov. 19, 1917.) 

PAY AN1> ALLOWANCES IT. A 3: TRAVEL ALLOWANCE OF REGULAR AKMY RESERVIST OX 

DISCHARGE. 

Upon the discharge of an enlisted man of the Regular Army reserve, recalled to 
active service, he is entitled to travel allowance from the place of his discharge to his 
home; that is, to the place from which he was furnished transportation when called 
ie ad ive duty. 

(Opinion of Nov. 16, 1917. affirming opinion of. I. A. G.) 



Notes ox the Administration ok Military Justice, 
vmendment of record. 

The reviewing authority in a recent case returned for correction attempted to 
amend the record by attaching thereto certificates of the president of the court and 
the trial judge advocate to the effect that the members of the court and the judge 
advocate were sworn. 

In another case, returned for correction, the president of the courl interlined and 
initialed a statement, to I he effect thai the accused was asked if he objected to any 
other member of the court, to which he replied in the negative. 

Proper correction of both of the errors referred to was essential to the validity of the 
proceedings. It has been decided in a number of cases that amendments '•can only 
be made by the court when duly reconvened for t he purpose, and when made must be 
the act of flie court as such." ( (lowland's Digest . p. 523.) Paragraph 364 of the Man- 
ual for Courts-Martial, 1917, plainly describes the method of correcting clerical and 
other errors in court-martial records, and failure to comply therewith unnecessarily 
increases the work of this office as well as the expense of administering military justice. 



20 DEMOTION OF OFFICERS OF THE REGULAR ARMY. 

COMMENT UPON EVIDENCE IN OPEN COURT BY MEMBER OF COURT. 

Alter the trial judge advocate had concluded his remarks and just before the court 
was closed for findings in the trial of a soldier charged with desertion and found guilty 
of absence without leave, the president of the court made the following statement: 

"To my mind it is an aggravated case of overindulgence in whisky in a young man 
whose future. I fear, is very black." 

This irregularity was of such a grave nature that had not the accused freely admitted 
his absence without leave on the witness stand the finding and sentence of the court 
must have been set aside. The president of the court, or any member thereof, has no 
right to comment in open court upon the evidence adduced at the trial. 

PROCEEDINGS IN REVISION — CONSTITUTION OF COURT. 

In a recent case it was necessary for the reviewing authority to return the record 
of trial of a soldier convicted of larceny to the court, with directions to reconvene and 
correct certain errors therein, which was done. Upon examination of the record in 
the office of the Judge Advocate General it was found that the proceedings in revision 
were invalid, lor the reason that a member of the court absent at the trial participated 
therein. The record was returned to the reviewing authority, who then issued an 
order setting the sentence aside as being invalid. No reason is apparent for not again 
reconvening 1 he court in order that it might correct the record in proper proceedings 
in revision. By this action of (he reviewing authority the trial was rendered ineffec- 
tual and a soldier convicted of a crime involving moral turpitude unnecessarily 
escaped merited punishment. 

PUNISHMENT FOR VIOLATION OF LIQUOR REGULATIONS. 

In a recent case, in addition to being (Convicted of desertion in time of peace, a 
soldier pleaded guilty to selling liquor to another soldier in uniform, in violation of 
section 12 of the act of May IS, 1917. The court imposed a sentence of dishonorable 
discharge, total forfeitures, and confinement at hard labor for IS months, which was 
approved by the reviewing authority, and which was adequate punishment onlv for the 
crime of desertion. The court apparently ignored the gravity of the offense of selling 
liquor to a soldier and failed to punish properly a self-confessed bootlegger. Any 
person who now furnishes liquor to a soldier impairs the military forces of the United 
Stales at a time of national emergency, when the country is straining every nerve to 
build up and increase the efficiency of its Army. Drastic punishment should be 
meted out in no uncertain manner to this class of offenders. 

TESTIMONY OF MEMBER OF COURT. 

During the trial of a recent case a member of the court, without being excused as 
such, testified as a witness upon request of and ostensibly, as stated by the president 
thereof, ''for the benefit" of the court, his testimony being adverse to the interests 
of the accused. In practical effect he was a witness for the prosecution, and, in view 
of the provisions of the eighth article of war, the Judge Advocate General held that 
his action in testifying and thereafter participating in the proceedings of the court 
rendered the findings and sentence invalid. 



Court Decisions. 

evidence: federal price list. 

The State of Washington sued a militia captain and his bondsmen on account of 
his failure to account for certain military equipment received prior to 1913. The 
defense Mas a general denial and an affirmative plea that defendant had demanded a 
board of survey to inquire into the alleged shortage, which demand had been arbi- 
trarily refused. At the trial the only evidence offered as to the value of the equip- 
ment was the Federal price list of equipment and supplies revised February 1, 1913. 
Held, that plaintiff was properly nonsuited, for the 1913 price list was no evidence 
of the value of the goods received long prior to 1913, and consequently no verdict 
for more than nominal damages could have been returned. (State v. Buckley, 167 
Par., 1087, Supreme Court of Washington.) 



DEMOTION OF OFFICERS OF THE REGULAR ARMY. 21 

JURISDICTION OF CIVIL AND MILITARY COURTS. 

On July 11 1917, a member of the National Guard, who had prior to that time 
been mustered and sworn into the service of the United States, shot and killed a 
policeman in the city of Newport, Ky. He was arrested by a sergeant pi ^company 
was committed by the county judge upon an examination, and was indicted by the 
srand jury on the charge of murder. His commanding officer fded a petition of habeas 
p Saying that the prisoner be delivered to the military authorities for trial by 
a court martial on the charges preferred against him. The court he Id that while 
the civil courts have priority of jurisdiction over capital crimes committed by soldiers 
in time of peace, the military authorities in time of war, having com. irrent , jurisdic- 
tion with the civil authorities for crimes committed in a loyal State, have the prior 
ri^ht After reviewing the authorities, Judge Cochran said: . 

"It is clear therefore, that under the Articles of War the civil authorities in time 
of war have no right to withhold a soldier accused of a crime from the military authori- 
ties or to demand him from them in order to try him for an offense against the criminal 

la He°neld e also that in this case the military authorities had not waived any of then- 
rights by the sergeant's act of delivering the prisoner to the county jail. (In re King, 
United States District Court, Eastern District of Ohio. Case and ( ommenl tor Novem- 
ber, 1917, p. 495.) 

SELECTIVE DRAFT ACT: INTERPRETATION, NON DECLARANT ALIEN'S. 

Relator was brought before the court on a writ of habeas corpus He was a citizen 
of Russia, had never declared his intention of becoming a citizen of the United States, 
was drafted for military service and ordered to report, and was arrested by the military 
authorities for not reporting. He received the usual notices; he never made any 
claim for exemption on ground of alienage in the manner prescribed by the regula- 
tions He alleged that he had made certain informal claims and tailed to make 
formal claim by reason of assurances given him by members of the local board that 
being an alien'he need not trouble himself further. This was denied by members 
of the local board. After the time for filing exemption claims had expired he made 
formal claim. The court stated the question at issue to be this: 

"Is a person who failed to claim exemption on the ground that he was a nonde- 
clarant alien, and who now asserts (without contradiction) that he is such an alien, 
properly in the custody of the" military authorities?" 

The question is answered in the affirmative, on the ground that the relator was not 
denied a fair hearing and the local and district boards acted in strict accordance with 
the procedure laid down by the regulations. The following excerpt from the opinion 
is of special interest: . . . ,. . 

"The remaining epiestion is whether the local board wholly lacked jurisdiction. 
It is contended because nondeclarant aliens are exempted from the draft that no obli- 
gation was placed upon relator affirmatively to present his claim for exemption, and 
this is but another way of stating that by virtue of the act itself relator was automat- 

10 "It must be 3 conceded at the outset that Congress had the power to subject all per- 
sons to the draft whether citizens or aliens ,,.,„,• 

"The question, then, is whether from the structure ,,1 the act it was the intention 
of Congress that only those who claimed exemption should in proper cases be exempted 
or whether those entitled to exemption could disregard the procedure provided toi 
by the act and the regulations and show aliunde, as here, that they fell within one ot 
the statutory exempt classes. . , . 

"The whole plan of the act is undoubtedly to require that those who claim exemp- 
tion shall affirmatively present their claim to the appropriate body so that that body 
can determine as a fact whet her the person falls within the exempted classes. \\ hen 
therefore no such claim is presented and the proceedings of the local and the district 
beards are regular in every respect, the curt can not go outside of the proceedings of 
the boards to determine independently something which the act required should be 
determined by these boards." . . 

( United States ex rel. Koopowitz v. Finley. United States I bstnet ( ourt, Southern 
District of New York, Mayer, judge, Nov. 3, 1917.) 

The petition alleged that petitioners were nondeclarent aliens and subjects oi Italy 
and by treaty not liable to military service here. There were no allegations that the 
draft boards had acted arbitrarily or had departed from the procedure prescribed by 
the draft regulations Held, that the courts can not under the tacts set forth in the 



22 DEMOTION OF OFFICERS OF THE REGULAR ARMY. 

petition interfere with the findings of the draft boards by resort to the writ of habeas 
corpus. (United States ex rel. Troiani v. Heyburn. United States District Court, 
Eastern District of Pennsylvania, Dickinson, judge, Sept. 10, 1917.) 

SELECTIVE DRAFT ACT: INTERPRETATION, DECLARANT ALIENS. 

The petitioner was a citizen of the Kingdom of Spain, who had filed his declaration 
of intention to become a citizen of the United Slates, lie was arrested off the shore 
of Mexico by a United Slates war vessel and detained under process for evading the 
selective draft act. He made application for a writ of habeas corpus, claiming that 
when arrested he was on his way to Spain, and that he was not subject to the draft act 
on account of the provisions of the treaty with Spain by which its citizens are exempt 
l'mm compulsory military service in the United States forces. Held, that the peti- 
tioner was subject to draft; that the provisions of the draft act, when in conflict with 
prior treaty stipulations, pVevail over them, and that the order to show cause why a 
writ of habeas corpus should not issue be discharged and the writ denied. (In re 
Victor Larrucea, United States District Court, Southern District of California, South- 
ern I livision. Bledsoe, judge. 



War Department, 
Office of the Judge Advocate General, 

Washington, July 29, 1918. 
Informal memorandum for Clou. March. 
Subject: Homogeneity of the Army of the United States. 

1. 1 have given your question such study as I have been able to 
do overnight. The general aspects of the question have been thor- 
oughly considered by me as early as September and again in Novem- 
ber of last year. Copies of the two opinions are herewith. In the 
first opinion, ({noting from an extemporized syllabus, it was held, in 
effect, that— 

(a) The Army of the United States as at present authorized consists of (1) the Reg- 
ular Army, (2) the National Guard and National Guard Reserve drafted into the 
Army, (3) the first additional force commonly known and hereafter referred to as the 
National Army. I I) the second additional force provided for and which may well be 
designated as the second National Army, (5) the recruit training units, in addition to 
and for each of the above forces, (6) ammunition batteries, battalion and artillery 
parts, (7) what may be familiarly known as the Roosevelt division which, in view of 
the Executive attitude, may be omitted from further consideration, (8) special and 
technical troops, (9) still other forces needing no special consideration. Their rela- 
tion one to another, whether they are independent and different elements directed 
to a common purpose or homogeneous components of a common whole, involves 
questions which are already of large general administrative import and which may 
reasonably be expected to become immeasurably more so with the progress of the war. 

(/>) Admitting that the war Army organization act (act May is, 1917), by its form 
and structure, gives a suggestion of independence of these several forces and that the 
exist inn administrat ive conception of the several components is one of independence, 
nevertheless such independence is not required to be maintained e\en by the letter 
and certainly not by the spirit of the statute, and can be maintained only with injury 
to the service. Only by administrative timidity, philosophic distinctions, legal 
niceties, and adherence to peace-time theories of military organization can the idea 
of independent relationship be sustained. Administration should proceed boldly 
along broad lines to sustain our fighting forces with unity of organization and unity 
of administration as well as of purpose. 

(c) The War Department must see the Army of the United States as a whole. By 
the declaration of war the President was directed to employ the entire naval and 
military forces of the United States and all the resources of this Nation to carry on the 
war. There is, speaking in the fundaments of law and fact, but one Army in this 
country the Army of the United States. It consists of all those components enumer- 
ated in the national defense act of June 3, 1916 and those other components enumerated 
in the war Army organization act of May 18, 1917, organic acts, providing for the Army 
of tin' United States, with which we are to fight this war. All components there 



DEMOTION OF OFFICERS OF THE REGULAR ARMY. 23 

enumerated constitute the Army of the United States under the single command of 
the constitutional Commander in ( hief, all existing for a single purpose. 

(d) The fact that some of the forces constituting the Army are raised in one way 
and some in another, concerns only the method of establishing the military relation 
in the first instance, without giving the individual a distinctive status or affecting the 
obligation of the individual as a soldier or the relation of the component to the Army 
itself or its subjection to the constitutional powers of the ( oinmander in Chief. These 
components are all one Army. 

(e) In view of the general principle above mentioned, it is specially held, in response 
to the specific question submitted, that transfers of enlisted personnel from one com- 
ponent force to another, in the sense of absolute incorporation in the force to which 
transferred, is permissible under the law; and, giving the reasoning the wider applica- 
tion it deserves, the department is required to abolish many of the distinctions which 
it conceives to exist between and among such component forces. 

That opinion also adverted to the homologous situation of all 
officers of the Army of the United States except as to the permanent 
tenure of officers of the Regular Army and the special limited tenure 
of officers of the Officers' Reserve Corps. It is only right to say that 
the then Acting Chief of Staff and the Secretary of War did not 
immediately, at least, give their full approval to the views therein 
expressed, but that, according to my information, several months 
thereafter, they approved the principles of the opinion but directed 
that they be given in practice a restricted application. 

2. The second opinion of November 2, 1917, was written in response 
to a complaint made in the interest of the officers of the National 
Guard drafted in the service of the United States in which it was 
claimed in effect that in officering the organizations in the Army of 
the United States composed of members of the National Guard 
drafted into said Army, the President was limited in his appointments 
to the forces composed only of drafted National Guardsmen. In 
disposing of said complaint, i held as follows [quoting the syllabus]: 

(a) The war Army organization act, otherwise sometimes called the selective- 
service law, of May 18, L917, did not confine the appointing power in the appointment 
of officers for the military forces of the United States additional to the Regular Army 
to any particular class of eligibles exclusively, hut on the other hand removed any 
such limitation upon such power as may have existed by virtue of any previous law. 

(b) Appointment of officers to organizations in the Army of the United States com- 
posed originally, in whole or in part, of those who had been drafted into the \riny of the 
United States from the National Guard, is not to he con lined exclusively to members 
of the National Guard so drafted or to any other class, hut may- lie made from the 
unlimited field of selection established in the third paragraph of section 1 of the war 
Army organization act. 

(c) The existing law does not require that soldiers in the Army of the United States 
who were drafted therein from the National Guard shall he organized into organiza- 
tions which are legal counterparts of the National Guard organizations to which such 
members formerly belonged; and while the statute recognizes and suggests a certain 
degree of convenience that may be served by recreating organizations in the Army 
of the United States in the nature of a federalization of the National Guard organiza- 
tions, it contains no requirement or direction to that end. 

(d) The President of the United States may, at his discretion, organize those members 
of the Army of the United States who were drafted therein from the National Guard 
in the same way as lie may organize all other members of the drafted Army of the 
United States and without regard to their antecedent National Guard status what- 
ever, and may officer them free from legal obligation to recognize exclusively for that 
purpose any distinctive class. 

(e) The National Guard element of the Army of the United States is not to be dis- 
tinguished from any other composite element thereof, and, with certain exceptions 
as to certain officers of the Army of the United States, all members-of the Army of the 
United States are upon the same plane, under the same legal obligation, and have the 
same legal duties. 

(/) During this war there is but one Army — the Army of the United States- and 
every organization, bureau, officer, and man in the military service is a part of it. 



24 DEMOTION OF OFFICERS OF THE REGULAR ARMY. 

3. In my judgment, not only is there no legal necessity for observ- 
ing, hut on the contrary, there is insuperable difficulty in attempting 
to observe, the peculiarities and distinctions which at first may have 
been thought to attach to such components except in so far as it may 
be found absolutely necessary to preserve them by reason of the 
peculiar tenure and right to- promotion which generally characterize 
the office of an officer of the Regular Army. 

4. Your specific question is whether or not promotions may be 
made during this war in all the various component forces of the 
Army of the United States without confining the promotion to 
officers of the particular component, and without adherence in the 
Regular Army component to temporary promotion by the rule of 
seniority. In all components other than the Regular Army, all that 
need be said is that the two opinions just quoted from establish 
beyond question that promotions may be made without any recog- 
nition of any distinctions between such components and without 
restriction to any such component, and without regard to any rule 
of seniority or otherwise. 

5. As regards the filling of office 1 in the regular establishment, there 
is obvious difficulty. The question of placing temporary promotions 
in the Regular Army upon a plane with promotions in the other 
components, and thus still further securing homogeneity, was con- 
sidered to some extent last January in the office of The Adjutant 
General, and in this office, and in the War Council. It was, I think, 
the better opinion at that time that legislation would be required 
for the purpose. An office memorandum made at the time by Col. 
Mayes for the Judge 1 Advocate General as a member of the War 
Council, contained the draft of a bill to that end. I at the time 
thought that a feasible result might be reached without legislation. 
In that memorandum my own position was accurately described as 
follows : 

Although Gen. Ansell is still inclined to the belief that the forces (i. e., the tem- 
porary forces and the Regular Army) might he consolidated for purposes of promotion 
without legislation, he is not certain of his ground. 

6. The unofficial study made in this office for the War Council was 
made upon the theory which, as presented, contemplated the mainte- 
nance of the peculiar distinctiveness of the temporary forces and the 
Regular Army. That theory did not suggest or give room for con- 
sideration of any plan which would eliminate the temporary promo- 
tion prescribed by law to be made in the Regular Army to fill vacan- 
cies created or caused by promotions of officers thereof to higher 
grade in the temporary forces. The solution of your problem lies, 
in my opinion, in a plan to accomplish the elimination of such promo- 
tional feature, for therein lies the difficulty of establishing a single 
rule for promotion by selection in the entire Army during the war. 
There are, of course, two kinds of promotion in the Regular Army- 
permanent and temporary — both governed by identical rules so far 
as the mere letter of the statute is concerned. As will be seen later 
on, the difficulty of establishing a single rule of promotion during 
the war in the entire Army is found not in permanent but in temporary 
promotion. 

7. In passing, however, it is but proper to advise you that the whole 
theory of promotion by seniority is without basis of constitutional 



DEMOTION OF OFFICERS OF THE REGULAR ARMY. 25 

authority. So it has been held by this office and so it was held, in 
1913, by* Attorney General McReynolds (now a Justice of the Supreme 
Court of the United States). In my own opinion, there is no room 
for doubt of the correctness of such a conclusion and I could never 
advise the President, especially in time of war, to adhere to an 
expression of Congress having so little constitutional basis and 
working in time of war such an injurious restriction upon the Com- 
mander in Chief of the Army. I may also say that the present 
Commander in Chief of the Army accepted and acted upon the view 
of his Attorney General although the Senate seemed not to concur. 
(The Ray case). Promotion by seniority in time of war is regarded 
too highly as a matter of law and as a matter of policy. 

8. Assuming, however, the constitutionality of the nets requiring 
promotion to be made by seniority, then, under the act of 1890, the 
permanent promotion in the Regular Army must be made in accord- 
ance with that rule. But, under the same assumption, the applica- 
tion of the rule to temporary promotion (and here lies the difficulty) 
may properly be obviated. This may be done by commissioning 
during the war all officers of the Army in the Army of the United 
States, by virtue of the authority of clause 3, section 1, of the act 
<>f May 18, 1917, with tenure for the period of the war. Temporary 
vacancies created in the list of officers of the Regular Army by ap- 
pointment to higher grades in the other forces are required by law 
to be filled by temporary promotions according to seniority from 
officers holding -commissions in the next lower grade of trie said 
arm, staff corps, or department. But in an opinion of September 
1, 1917, I held that— 

When an officer of the Regular Army leaves his place in the permanent establish- 
ment to accept temporarily a higher rank in another force, it must, 1 think, lie assumed 
that his commission in the Regular Army is temporarily in abeyance. "While serving 
under a different commission in some other force he does not and can not function 
under his commission in the Regular Army. He is not. therefore, within the mean- 
ing of the statute, an officer "holding a commission in the next lower grade of the 
-aid arm, staff corps, or department," for, as just shown, he has ceased to function 
therein and is temporarily as much absent therefrom as it he really formed no part 
of such arm, staff corps, or department. The statute can properly he given full 
force and effect by holding the language just quoted to mean that promotion to 
temporary vacancies caused through appointment of officers of the Regular Army 
to forces other than the Regular Army shall be filled by temporary promotion accord- 
ing to the seniority of the officers who remain in the Regular Army and are. at the 
time of such appointment, serving under their commissions therein. Officers not 
serving under their commissions in the Regular Army would thus be temporarily 
passed over instead of being promoted temporarily to higher vacancies in their own 
arm, staff corps, or department; they would be left to serve under the higher coin- 
missions which they are temporarily holding in some other force. Such is the clear 
intendment of tin- statute, and such. I think, must have been the intendment of 
< 'ongress in enacting it. 

Thus it is that by the commissioning of every officer of the Regular 
Army to a higher grade in the Army of the United States as just 
mentioned (and alb who are fitted for promotion I assume now oc- 
cupy such higher grades either by temporary promotion in the 
Regular Army or by appointment in the National Army), all ques- 
tion of temporary promotion in the Regular Army becomes elimi- 
nated, and at the same time all officers in the Army of the United 
States come to occupy a status in which promotion by seniority is 
not prescribed by statute and is. therefore, left to be determined by 
the President upon considerations of merit alone. 



2'3 DEMOTION OF OFFICERS OF THE REGULAR, ARMY. 

9. Doubtless there will be minor difficulties, but once the broad 
principle is established, difficulties may be expected to yield to it. 
For example, the question may, and doubtless will, arise upon the 
discharge of an officer holding a permanent commission in the Regu- 
lar Army from bis temporary commission. Reverting to his perma- 
nent Regular Army commission, it might appear that there would be 
ahead of him a hierarchy of vacancies to which he would be entitled 
to be promoted. But this will not be the case under the statutory 
rule for promotion by seniority when properly construed. In an 
opinion of this office dated November 27, 1917, directly to point, I 
held that- 
Temporary promotion by seniority contemplates l hat the appointing power should 

lie satisfied that tin' officer about to he promoted is qualified. No officer is entitled 
t'> promotion regardless of his qualification^. The failure of an officer to discharge 
the duties ofa higher grade in the National Army mayand should he regarded by the 
President as satisfactory evidence of his disqualification to perform the duties of the 
same grade in the Regular Army. It is within the power of the War Department to 
pres 'ribe how long an officer who has demonstrated his qualification for a command 
in the National Army shall remain ineligible for temporary promotion in the Regular 
Army and upon what conditions he shall become ineligible for such promotion. 

10. This plan, it may again be observed, does not contemplate 
interference with, or modification of, the prescribed rule of perma- 
nent promotion. An officer holding a commission in the Army of 
the United States by virtue of the authority hereinbefore referred to 
may receive his permanent promotion when found qualified therefor 
without, however, disturbing his commission in the Army of the 
United States contemplated by this plan and his assignment to duty 
thereunder. 

11. 1 am authorized to say that Col. Mayes who made the study 
for the War Council hereinbefore referred to, has participated in the 
preparation of this memorandum and concurs in it throughout. 

(Signed) S. T. Ansell. 



[G. 0.73.] 
General Orders,] War Department, 

Xo. Til. J Washington, August /'. 1918. 

1. This country has hut one army the United Slates Army. It includes all the 
land forces in the service of the United Stales. Those forces, however raised, lose 
their identity in that of the United Slates Army. Distinctive appellations, such as 
the Regular Army. Reserve Corps, National Guard, and National Army, heretofore 
employed in administration and command, will he discontinued, and the single 
term, the United States Army, will he exclusively used. 

'_'. Orders having reference to the United Sines Army as divided into separate 
and component forces of distinct origin, or assuming or contemplating such a division, 
are lo that extent revoked. 

:'.. The insignia now prescribed for the Regular Army shall hereafter he worn by 
the I'niled States Army. 

I. All effect ive commissions purport ing to he, and described i herein as. commissions 
in the Regular Army, National Guard, National Army, or the Reserve Corps shall 
hereafter he held to he. and regarded as, commissions in the United States Army- 
permanent, provisional, or temporary, as fixed by the conditions cf their issue; and 
all such commissions are liereb) amended accordingly. Hereafter during the period 
of the existing emergency all commissions of officers shall be in the tinted States 
Army and in staff corps, departments, and arms of the service thereof, and shall, as 
the law may provide, lie permanent, for a term, or for the period of the emergency. 
And hereafter during the period of the existing emergency provisional and temporary 
appointments in the grade of second lieutenant and temporary promotions in tin' 
Regular Army and appointments in the Reserve Corps will he discontinued. 



DEMOTION OF OFFICERS OF THE REGULAR ARMY. 27 

5. While the number of commissions in each grade and in each staff corps, depart- 
ment, and arm of the service shall be kept within the limits fixed by law, officers 
shall be assigned without reference to the term of their commissions solely in the 
interest of the service; and officers and enlisted men will be transferred from one 
organization to another as the interests of the service may require. 

6. Except as otherwise provided by law, promotion in the United States Army 
shall be by selection. Permanent promotions in the Regular Army will continue to 
be made as prescribed by law. 

[320, A. G. O.) 

By order of the Secretary of War: 

Peyton 0. March, 
General, Chief of Stall'. 
Official: 

II. P. McCaix, 

The Adjutant General. 

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